Thursday, February 07, 2008

Interesting Sixth Circuit En Banc Decision Deepens Circuit Split Over Reasonableness Review and Plain Error

As you'll recall, the Fifth Circuit held in United States v. Peltier that "a defendant's failure to object at sentencing to the reasonableness of his sentence triggers plain error review." That decision was wrong for a variety of reasons, but that's not the point of this post, which is instead about the circuit split that has developed on this issue and what that means for counsel representing defendants at sentencing. Peltier mentioned the split, but didn't discuss it, or the plain error question, in great detail. For that, you should read the Sixth Circuit's very interesting en banc decision today in United States v. Vonner, No. 05-5295 (6th Cir. Feb. 7, 2008).

Vonner pleaded guilty to distributing crack. The PSR, which Vonner didn't object to, calculated his Guidelines range at 108 to 135 months. At his sentencing hearing, which was held just three weeks after Booker was decided, Vonner asked for a downward variance based on several factors. The district court, after giving a skimpy statement of reasons, imposed a within-Guidelines sentence of 117 months. "After announcing the sentence, the court asked Vonner’s counsel whether 'the defendant [has] any objection to the sentence just pronounced not previously raised.' Vonner’s counsel responded, 'No, Your Honor.'" (That last question was required by United States v. Bostic, a pre-Booker decision from the Sixth Circuit.)

Vonner appealed, challenging both the reasonableness of the length of his sentence, as well as "the district court['s] fail[ure] to explain in sufficient detail why it rejected some of his arguments for a downward variance." The en banc majority held that although Vonner's request for a downward variance preserved his substantive reasonableness challenge, his failure to object to the district court's explanation after the sentence was imposed subjected his procedural reasonableness challenge to plain error review. The court was careful to point out (contra Peltier) that defendants are not required to object to the "reasonableness" of the sentence in the district court, because that's the appellate standard of review, not the standard the district court is required to follow. As the majority framed it, the question is whether the specific ground on which the defendant is challenging his sentence was presented to the district court. Thus, if a defendant argues that his sentence is substantively unreasonable on grounds other than those he urgued in the district court, then the court of appeals will review only for plain error. Likewise, if a defendant failed to object to a procedural defect in the sentencing process (such as an error in calculating the Guidelines, or a failure to provide an adequate statement of reasons), then plain error review applies.

The majority opinion drew three sharp dissents, which cover a lot of ground. The principal point of disagreement concerned the "divisibility" of reasonableness review. According to the dissenters, although there are both substantive and procedural components to reasonableness review, Gall and other decisions make clear that "these two inquiries are simply different aspects of the overall reasonableness review required by Booker." It's a single analysis that evaluates both the procedural and substantive reasonableness of the sentence. Thus, to preserve a reasonableness challenge a defendant simply needs to present his § 3553(a) argument (which would include any objections to the PSR or to Guidelines calculations) to the district court. Having done so, he should have no further obligation to object to the procedural reasonableness of the sentence after it has been imposed.

Another dissent catalogued the "strikingly different approaches adopted by the circuits," plaintively expressing "hope that the Supreme Court chooses to resolve the issue of whether defendants must object after the district court has imposed a sentence to preserve some, any, or all, of their Booker reasonableness claims."

Okay, so what does all of this mean on the ground? Well, in light of Peltier, it would be prudent to object to the length of the sentence after it's imposed. That should preserve at least a substantive reasonableness challenge. And even though Vonner isn't binding precedent in our circuit (and conflicts with Peltier in some respects), you should probably also specifically object to any procedural defects that you haven't already objected to by the time the sentence is imposed. To review, Gall provided a list of possible procedural flaws,
such as failing to calcluate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence---including an explanation for any deviation from the Guidelines range.
Now you will have already made some of those objections (such as an objection to the Guidelines calculations) before the sentence is imposed, and there's no need to re-urge them after the district court has ruled on them. But you may need to specifically raise others (like an inadequate explanation for the chosen sentence) after the sentence is imposed. That's not to say that Vonner (or Peltier) is right, but considering the fact that there's no telling how the Supreme Court might resolve this question (if it resolves it at all), prudence dictates that you dot all the I's and cross all the T's, lest your client's appeal get poured out on plain error review.

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